of law that operate upon the question we have under consideration; namely, "eminent domain," which implies a taking by the sovereign for some public benefit, and the "police power," which implies a regulation by the sovereign of private property for the preservation of the public safety, health, and general welfare. "Eminent domain" is a reserved right, or an unextinguishable attribute of sovereignty, that may be exercised by the state, or its authorized agent, to effect a public good whenever public necessity requires it. Resting upon a public benefit it cannot, under the Constitution, be enjoyed by the public, except upon condition that full compensation for all damage to private property for that taken or injured shall be first paid or tendered. The "police power" arises from a very different source. It springs from the fundamental principle that every property owner must so use his own as not to endanger the safety, health, and general welfare of the community in which he lives. Lewis, Eminent Domain, § 6, and authorities collated. It operates upon an existing evil that injuriously affects the health, morals, safety, or general welfare of the community, and is a power to which every person and corporation must yield obedience, and from which the state itself cannot grant exemption. Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079; Butcher's Union Co. v. Crescent City Company, 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585. "It extends to the protection of the lives, health, and property of the citizens, and the preservation of good order and public morals." Beer Company Case, 97 U. S. 33, 24 L. Ed. 989. Under its wide application unwholesome and adulterated foods may be destroyed, the sale of intoxicating liquors restricted, easy exits from theaters and other public halls required, sometimes at heavy expense, and also fire escapes from hotels and schoolhouses. This power may also compel builders to plank lofty floors, manufacturers to guard dangerous machinery, miners to maintain props. In an emergency from fire it may tear down private buildings and otherwise destroy private property without rendering compensation. 2 Kent. Com. 339, notes. It may also eject from populous communities, or confiscate the business, of all forms of public nuisance, thus rendering valuable structures worthless, or of greatly reduced value, without any right to indemnity accruing to the sufferer. Railroads are by no means exempt from this power. They enjoy, as grants from the people, superior rights to go where they please, and as fast as they please, subject to the duties that are constantly being imposed upon them having reference to the safety of persons and property. The use of improved breaks, switches, signals, couplers, and a multitude of other safety devices is often commanded, though previously used devices are thereby rendered worthless. The same principle applies with equal vigor to highway crossings. There is

probably more human life and property destroyed from collision with trains at railroad crossings than from all other railroad accidents combined. It is evident that a high degree of care to avoid accidents at crossings is of first importance. And there are reasons why railroad companies should be charged with the duty of constructing and maintaining all such crossings in a suitable and safe condition. In the first place, their right to traverse the country on private property is subject to the right of the people to construct highways for their own convenience across the same country, and the railroad, whenever it becomes necessary. Railway Company v. Railway Company, 30 Ohio St. 604; Railway Company v. Chicago, 140 Ill. 309, 317, 29 N. E. 1109. In the second place, the peculiar danger at the crossings is all created by the railroads. In the third place, the companies know best the character and requirements of their trains, and the means best calculated to minimize the dangers. In the fourth place, a divided responsibility would likely prove impracticable, impolitic, and inefficient; and, in view of the burdensome liability of railroad companies to their passengers, it is clear that the companies should have the entire control of all things necessary to be done within its right of way, for any purpose, whether for the benefit of the company or the public. Anyhow the Legislature deemed it expedient to enact section 5153, Burns' Ann. St. 1901, which, under the interpretation given it by this court, requires a railroad company, at its own expense, to do whatever the conditions present at each particular place require to be done to render the crossing suitable and reasonably safe, “or in a sufficient manner not to unnecessarily impair the usefulness" of the highway, "or interfere with the free use of the same," and, "in such manner as to afford security for life and property." And when necessary to accomplish these ends the company will be required to carry its railroad over, or under, the highway, as the case may be. Elliott, Railroads, § 1107; Elliott, Roads and Streets, § 778; Chicago, etc., Co. v. State, 158 Ind. 189, 193, 63 N. E. 224, and cases cited; Railway Company v. State, 159 Ind. 237, 64 N. E. 860; Baltimore, etc., Co. v. State, 159 Ind. 510, 520, 65 N. E. 508; Vandalia R. Co. v. State, 166 Ind. 219, 76 N. E. 980. Applying these principles to the question before us, the appeal must fail.

Whatever was necessarily taken from the railroad company by the city in the extension of its street over the company's right of way may be said to have been taken in the exercise of eminent domain, and therefore subject to full compensation. But the street being once across the right of way, whatever is then necessary, under the statute, for the company to do to construct and maintain the crossing in such manner as will render it suitable and safe as a railroad crossing for the passage of trains and travelers on the

highway, is a regulation emanating from the police power, and must be complied with without compensation. Lewis, Eminent Domain, §§ 6, 156; Chicago, etc., Co. v. Zimmerman, 158 Ind. 189, 63 N. E. 224, and cases cited; Elliott, Railroads, § 1107.

The rule is well settled that neither a natural person or corporation can claim damages on account of being compelled to comply with a police regulation, designed to secure the public health, safety, or welfare. Lewis, Eminent Domain, § 6; Railroad Company v. Shelley, 163 Ind. 36, 71 N. E. 151; Elliott, Railroads, § 1103; Railway Company v. Chicago, 140 Ill. 309, 29 N. E. 1109. It is equally well settled that an uncompensated obedience to a regulation ordained to secure the public health and safety is not a taking of private property, within the inhibitions of the state or federal Constitution. Lewis, Eminent Domain, § 6; Mugler v. Kansas, 123 U. S. 623, 668, 8 Sup. Ct. 273, 31 L. Ed. 205; Railway Company v. Shelley, 163 Ind. 36, 46, 71 N. E. 151, and cases cited.

In the case at bar the jury was directed to allow appellant for the value of the land actually taken by the city in extending its street across the right of way, being a strip 66 feet long (the bottom width of the railroad) and 60 feet wide (the width of the street). Appellant had no interest in the land as land, except an easement, that is, a right to lay its track and operate its cars and trains over the same, and when the company had constructed the crossing as required by the law, and could run its cars and trains on the bridge over and across the street on the same old line and grade, it was still in the full enjoyment of its easement, and there was no taking of its land beyond a temporary inconvenience. The court also instructed the jury to further allow appellant the value of the section of the embankment that must be removed, and also the cost of removing the same. The award under these instructions was $800, and it is clear that the instructions were as favorable to appellant as under the laws of this state it has the right to ask. See C., B. & Q. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979. Judgment affirmed.

(41 Ind. App. 440)

SMALL et al. v. BINFORD et al. (No.

6,202.)1

(Appellate Court of Indiana, Division No. 2. Jan. 16, 1908.)

1. INJUNCTION-TRESPASS-COMPLAINT.

A complaint alleged that defendants claimed and exercised a right to pass over complainants' land, and in doing so had torn down gates, fences, etc., and were threatening to continue to exercise such alleged right, and prayed that defendants be enjoined from so doing. Held that, though the complaint was insufficient as a complaint to quiet title, the general averments necessary to such a complaint being followed by detailed averments that defendants claimed a right of way over the land. to which they were not legally entitled, such right not being incon1 Rehearing denied, 84 N. E. 19.

sistent with title in plaintiff, it was, nevertheless, sufficient as a suit for an injunction. [Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 223-242.]

2. JURY-RIGHT TO JURY TRIAL-EQUITABLE PROCEEDINGS.

The right to a trial by jury does not exist in cases of purely equitable cognizance, as provided by Burns' Ann, St. 1901, § 412, authorizing the court in such cases to submit issues to a jury in its discretion for the court's advice, and hence the court's refusal to submit issues in such a proceeding was not error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Jury, §§ 35-65.]

3. HIGHWAYS ANCIENT ROAD

MENT.

ABANDON

An ancient road, having existed and been used since 1860, was a public highway, and could only be vacated by a complete abandonment, or by proceedings specified by Burns' Ann. St. 1901, § 6759.

· CONSTRUCTION

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 279-287.] 4. SAME NEW TURNPIKE EFFECT. The building of a new turnpike is ineffec ive to work an abandonment of an ancient highway, where the turnpike is a new and separate road.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Highways, §§ 279-287.]

5. SAME-ABANDONMENT-PRESUMPTION.

Abandonment of an ancient highway would not be presumed, where it would leave certain landowners without means of egress or ingress. [Ed. Note.--F'or cases in point, see Cent. Dig. vol. 25, Highways, §§ 279-287.]' 6. SAME-DEVIATION.

Where an ancient highway had been established by user, subsequent deviations from the line of way did not affect the existence of the easement under the rule that, where a way across land is changed with the consent of all parties, a dedication of the new way is presumed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 279-287.]

7. SAME-RIGHT TO DEVIATE.

Where a highway becomes impassible, travelers are entitled to deviate from the established road onto adjacent land.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 291.]

8. SAME-EXTENT OF USE.

The fact that an ancient highway is rarely used except by a few persons, to whom,it affords a means of ingress and egress from their land, does not make it the less a public highway.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 5-8.]

Appeal from Circuit Court, Hancock County; E. W. Felt, Judge.

Suit by Penina Binford and others against Rose C. Small and others. From a decree for complainants, defendants appeal. Reversed and remanded with instructions.

Wm. Ward Cook, for appellant. John H. Magee and John H. Kiplinger, for appellee.

ROBY, C. J. Plaintiffs, appellees herein, brought suit against defendants, averring that the latter claim and exercise a right to enter upon and pass over their 47.48-acre tract of land. and in so doing have torn down gates and fences, and are threatening to continue the exercise of such alleged right. They

pray that the defendants be enjoined from so doing. Defendants filed a cross-complaint, alleging that there is a public way over plaintiff's land, established by 43 years' user, and pray that their right to use the same may be set at rest, and that the plaintiffs be enjoined from interfering with their use thereof. Judgment was rendered for plaintiffs, a new trial granted, and the venue of the cause changed to Hancock county. Here upon trial by the court a special finding was made, and conclusions of law stated thereon, in accordance with which judgment was rendered enjoining the defendants as prayed. The following map sufficiently shows the lands in question:

tion (A), and angling in a southeasterly direction, intersecting the half section line, being the west line of the Binford land, about 25 rods south of the northwest corner of said Binford land (G), and continuing south on said middle dividing line about 35' rods (G-K); thence angling to the southeast on the Binford land, intersecting the line dividing the Binford and the Small lands at a point (0) 40 rods west of the southeast corner of said Binford land; and thence angling to the southeast over other lands to the ford at Blue river, and thence eastward 1⁄2 mile to the town of Carthage. This highway, the course of which was largely through woodland, was not fenced where it ran

The Binfords and the Smalls came into possession of their respective lands prior to 1867. Since that time a fence has been maintained between their lands (M-P), and since 1888 Small has maintained either a gate or bars at the western end of said fence (MN). From about 1830 to 1860 there existed a public highway leading from a northwesterly direction, entering a short distance east of the northwest corner of the quarter sec

through the west half of the section (A-G), but on that portion of it running south on the line between Binford and Jessup (G–K). A hedge was planted 1 rod west of the line (F-Q), and a rail fence built 5 feet east of the line (H-L). In 1860 the Carthage turnpike, running on the north line of the quarter section in question, was constructed. This new thoroughfare diverted almost the entire travel from the ancient roadway de

scribed above. The part of the old roadway situated on Jessup's land (A-G) was no longer used. The Smalls, as well as the Jessups, whose residence was near the south end of their land, continued to use a part of the old roadway in going north from their residences to the Carthage turnpike; a lane. or continuation of the old roadway, being made (G-C) from the north end of the hedge fence to the pike in the same year the latter was constructed. According to the evidence this route was used upwards of 25 times a year by the Smalls. It was used whenever the river was high, making the ford unsafe to cross, and when fat hogs or other stock were driven to market. Public use was also made of the part of the old road running along the south end of the Binford land to the ford and thence to Carthage, and the use of the road in both directions was with the knowledge and consent of the Binfords. The lane or continuation of the old roadway north of the hedge fence to the pike (B-D-H-F), above mentioned, was used up until about 8 years ago. At that time the way was shifted by the Binfords to the east; the east fence of its former course being the west fence of its new course, and which opened from the Carthage turnpike by means of a gate (D-E). Another variation of the original road or outlet (J) was caused by the digging of a gravel pit (I) in the said road at a point about 25 rods south of the pike. The use of the roadway was free and uninterrupted until 1903, when the appellee herein forbade the Smalls to enter upon said road, and caused a lock to be placed on the gate at the turnpike (D-E). The errors relied upon for reversal are that: (1) Plaintiff's complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in its conclusions of law; and (3) the court erred in overruling appellants' motion for a new trial. Grounds for a new trial, stated and argued, are: (a) That the court erred in refusing to submit the cause to a jury; and (b) that the findings and decision are not sustained by sufficient evidence.

The sufficiency of the complaint is first challenged by assignment of error. The pleading contains general averments which would make it sufficient as a complaint to quiet title, but they are followed by specific and detailed averments which show that the defendants claim a way over said land, and are threatening to tear down fences and gates erected by plaintiffs to prevent the use thereof. It is specifically averred that they have no right to such way. The specific claim which the defendants are averred to make is not inconsistent with ownership. Parish v. Kaspare, 109 Ind. 587, 10 N. E. 109; Nowlin et al. v. Whipple et al., 120 Ind. 596, 598, 22 N. E. 669, 6 L. R. A. 159. Therefore the complaint construed as one to quiet title would be insufficient, the general

averments being cut down by the specific ones. As a complaint for an injunction, it states facts sufficient to bar another action, and the assignment cannot therefore be sustained. Efroymson et al. v. Smith, 29 Ind. App. 451, 454, 63 N. E. 328; Xenia Real Estate Co. v. Macy, 147 Ind. 568, 572, 47 N. E. 147. The right to a trial by jury does not exist in cases of purely equitable cognizance. Section 412, Burns' Ann. St. 1901; Helm v. Bank, 91 Ind. 44; Hopkins v. Greensburg, 46 Ind. 187.

Appellants requested that the issues made upon both the complaint and the cross-complaint be "submitted to the jury on interrogatories." While it is competent for the court in the trial of an equitable cause to take the opinion of a jury on questions of fact, submitted in the form of interrogatories, such finding is advisory only (section 412, Burns' Ann. St. 1901), and there was therefore no error in refusing to so submit such questions.

.

The ancient road described above was a public highway, and as such can only be vacated by complete abandonment or by proceedings under the statute. Section 6759, Burns' Ann. St. 1901; State ex rel. v. Stevens, 103 Ind. 55, 2 N. E. 214, 53 Am. Rep. 482. The building of the new turnpike cannot be said to have worked an abandonment of the old road, for the former is a new and separate highway. The dwellings of Binford and Jessup, as well as that of Small, had been built with reference to the old road.

Such

an abandonment would leave landowners without a way to get to or from their property. To cut off the egress and ingress of landowners is not the policy of the law, and therefore an abandonment affecting such result will not be presumed. Vacation of highways are not favored, and the presumption is always in favor of their continuance. Kyle v. Board of Com'rs, 94 Ind. 115, 116. After the establishment of the Carthage turnpike in 1860 the angling road across the Jessup land (A-G) was no longer traveled, but such travel was transferred to a direct line north, which has since been used with the knowledge and consent of all concerned. Subsequent deviations from the line of way as then used do not preclude the existence of the easement. Where a way across land is changed with the consent of all parties, a dedication of the new way is presumed. Larned v. Larned, 11 Metc. (Mass.) 421. To effect an abandonment there must be an intention so to do. Stokoe v. Singers (1857) 8 Ellis & B. 31, 39; Crossley v. Lighttowler, L. R. 2 Ch. Ap. 478.

The right to deviate from the established road on adjacent land when the highway becomes impassable is well established (Campbell v. Race, 7 Cush. [Mass.] 408, 54 Am. Dec. 728; Irwin v. Yeager, 74 Iowa, 174, 37 N. W. 136), and a slight deviation on account of some obstacle, such as the gravel pit here, will not result in the loss of a right of way. It is sufficient if the line of travel remains

substantially unchanged, although at times it may deviate to avoid bad roads or obstructions. Elliott on Roads & Streets (2d Ed.) $ 176; Ross v. Thompson, 78 Ind. 90, 95; Howard v. State, 47 Ark. 431, 2 S. W. 331; Nelson v. Jenkins, 42 Neb. 133, 60 N. W. 311; Bumpus v. Miller, 4 Mich. 159.

The fact that the road is rarely, if ever, used by persons other than the appellants, makes it none the less a public highway. The law does not fix the number of persons who must travel upon a road to determine its existence. L., N. A. & Chi. R. Co. v. Etzler, 3 Ind. App. 562, 30 N. E. 32; Baldwin v. Herbst, 54 Iowa, 168, 171, 6 N. W. 257; Village of Grandville v. Jenison, 84 Mich. 54, 47 N. W. 600. This road is used, and it is still a public way.

The facts above set out are disclosed by the special finding. It follows that the court erred in its conclusions of law. The judgment is reversed, and the cause remanded, with instructions to restate conclusions of law as follows: (1) That the plaintiffs take nothing on their complaint; (2) That the defendants are entitled to a decree against the plaintiffs perpetually enjoining them and each of them from interfering with the use of such highway, and for further consistent proceedings.

(41 Ind. A. 81)

PARRY MFG. CO. v. EATON. (No. 6,144.) (Appellate Court of Indiana. Jan. 17, 1908.) 1. PLEADING-AMENDMENT-TIME FOR ALLOWANCE OF AMENDMENT.

An amendment to the pleadings may be made after the evidence is heard.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 653-664.] 2. SAME.

Where, in an action for injuries to an employé, the complaint alleged that the employer negligently maintained a contrivance, which was described, to keep open the window shutters on his building, with knowledge that the same was dangerous, that the employé, injured by a part of the contrivance falling on him while passing along the building to his work, did not know the facts, and could not by using ordinary care have known them, the allowance, after the close of the evidence, of an amendment alleging that the employé did not know that the contrivance was dangerous, and did not know, and could not have known by using ordinary care, that the employer negligently maintained the contrivance, was not erroneous, the amendment not changing the issues, nor misleading the employer. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686-709.] 3. APPEAL REVIEW COURT.

-

- OBJECTIONS IN TRIAL

*

of which, in t' exercise of reasonable precaution, he ought to have known, and that "it is incumbent upon the plaintiff to show, * * * before he is entitled to recover, that the risk of the defect or hazard * was not knowingly assumed by him," does not, when read as a whole, eliminate, because of the use of the quoted phrase, the part of the case which requires him to prove that he did not assume the risk.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1168-1179.] 5. SAME.

Instructions, in an action for injuries to an employé because of a defective appliance, that he must prove by a preponderance of the evidence that he could not by the use of ordinary care have known of the danger, and that there could be no recovery unless he did not know, and could not have known by the exercise of reasonable care, that the appliance was defective, does not permit the jury to infer, without evidence, that he did not assume the risk.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1168-1179.]. 6. SAME.

Where, in an action for injuries to an employé, the court charged that if he knew, or by the exercise of reasonable diligence could have known, that the appliance causing the injuries was defective, he could not recover, and that he must prove that the injuries were such as in the exercise of reasonable foresight the employer ought to have anticipated, an instruction only stating facts justifying a verdict for the employé, and an instruction stating only one of the several possible states of facts under the evidence, and the fact that if the employer did not know of the danger he was not liable, were not, when read together, misleading.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1168-1179.] 7. SAME-DUTY OF MASTER-SAFE PLACE AND APPLIANCES-DELEGATION OF DUTY.

The duty of an employer to furnish a reasonably safe place in which an employé is to work is a continuous one, which cannot be delegated; but where an employer has provided a safe place, tools, and co-employés, and has given sufficient warning of hidden dangers, he may commit to the employés the details of the work, and they are fellow servants.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 175, 385-410.] 8. SAME.

Where an employer provided a contrivance for keeping open the window shutters of his building, whoever manipulated the contrivance stood for the employer, and an employé injured by a bar in the contrivance falling on him after a co-employé had placed the same in position to keep the shutters open was entitled to recover as against the objection that the injury was caused by the negligence of a co-employé.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 385-391.] 9. NEGLIGENCE-ORDINARY CARE.

What is proper care in a given situation is gauged by the danger to be reasonably apprehended under the circumstances existing at the time, and not by looking back after the accident, and ordinary care, where the danger is great, may call for unremitting attention; but the mere probability of injury arising from want of ordinary care is an important element in determining the degree of care required.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 1-4, 371-374.] 10. SAME.

Negligence will not be imputed to an injury that could not reasonably have been anticipated. [Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 1-4, 371-374.]